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Wednesday, 25 March 1987
Page: 1266


Senator HARRADINE —I give notice that, on the next day of sitting, I shall move:

That the Senate, noting

(a) the Governor of Victoria, (Dr Davis McCaughey) deliberately chose as the subject for the 23rd Tracey Maud Memorial Lecture the title, `Medical Ethics . . . Who decides what and how?', which in his speech he describes as `one of public controversy';

(b) when referring to the question of human embryo experimentation, the Governor in his speech, said: `Even if legislation of a restrictive kind were to receive a majority vote, say in the Senate, or were to reflect public opinion as expressed in a public opinion poll, it would still be questionable whether it would be good democracy to impose it';

(c) Dr Davis McCaughey, in conjunction with another member of the National Health and Medical Research Council's Medical Research Ethics Committee (Dr Robert Jansen, now a director of an IVF clinic in New South Wales) drew up the pro-experimentation guidelines in 1982 which have given rise to so much public concern; and

(d) these guidelines were subjected to the scrutiny of the Senate Select Committee on the Human Embryo Experimentation Bill 1985, which found that the marker event contained in the guidelines before which experimentations on human embryos could take place lacked inherent ethical validity, and that the concept contained in those guidelines that the human embryo could be regarded as property should be rejected,

Declares that:

(i) the statement by the appointed Governor of Victoria, His Excellency Dr Davis McCaughey, which questioned whether it would be good for democracy in effect for Executive governments to enforce laws passed by elected parliaments restricting experimentation on human embryos strikes at the heart of our system of parliamentary democracy and brings discredit on the office of Governor,

(ii) the question of experiments on human embryos is a major matter of public importance which cannot be confined to and determined by selected scientists and ethics committees,

(iii) insofar as the Governor's statement seeks to undermine the Act of the Victorian Parliament which restricts experiments on human embryos that is a question for the people of Victoria to determine; and

(iv) insofar as the Governor's statements relate to proposals by a Senate Select Committee and the Family Law Council for federal legislation to restrict experiments on human embryos-proposals which are now being considered by the Federal Government-the statement of the Governor of Victoria is a reflection upon and an improper attempt to unduly influence the demo-cratic processes of the Parliament of the Commonwealth of Australia.

Senator Gareth Evans-Mr President, I draw your attention to that part of Senator Harradine's notice of motion which describes the statement of the Governor of Victoria, His Excellency Dr Davis McCaughey, in quite adverse terms. In particular, he says that it will bring discredit on the office of Governor. I draw your attention, Mr President, to standing order 417-also, I suppose, 418 to the extent that the Governor of Victoria is a part of the Parliament of Victoria-and ask you to consider whether it may not be out of order to express a motion in these terms, which appear to me to be manifestly disrespectful to the person concerned and to his office.

Senator Chaney-On the point of order, Mr President: I must say that as the honourable senator was reading his notice of motion it occurred to me that there might be some question of the sort which has been raised by Senator Evans. I have not had a chance to study the matter but I wish to say that there seems to me to be quite a difference between making a disrespectful reference to Her Majesty or a representative in debate and having a substantive motion which goes to what seems to me to be a most unusual act by the Governor of Victoria, which is to enter into a debate on policy issues which are very difficult and to cast doubts upon the rights of the legislature to legislate with respect to matters which I would have thought were clearly within the legislature's competence.

So I ask you, Mr President, in considering this matter to bear in mind very carefully that this is not a debate but a substantive motion which raises what seems to me to be a very proper question of public interest and one on which I would have thought the previous Attorney- General, Senator Evans, might have had very strong feelings in terms of the limits of the royal prerogative and the role of the Crown in dealing with matters which are properly the concern of government and the Parliament and which have perhaps not a high degree of party political content but a very high degree of policy content which will have to be considered by legislatures at both State and Federal levels. So my point on the point of order is to suggest that it would be a very strange set of Standing Orders which precluded a senator from raising the issue which is raised by Senator Harradine in his motion in the way in which he has, which seems to me to be respectful in its address and terms but very critical of the entry of the Queen's representative into a matter which has been the subject of some debate here. I do not wish to use this point of order as an opportunity to get into the substance of that.

Senator Gareth Evans-You are not doing a bad job.

Senator Chaney-This is a matter of very considerable importance. I would have thought that the point of order taken by Senator Evans sits very oddly with some of his stated attitudes with respect to the role of the Parliament as against the role of the Crown. Therefore, Mr President, I ask you to consider the matter bearing in mind that it should be the prerogative of any senator to bring into this place a motion which goes to the role of the Crown in this matter and the role of the Governor of Victoria in this area of controversy.

Senator Sir John Carrick-On the point of order: This is a very difficult matter but I want to support Senator Chaney. First of all I want to point out that the issue that Senator Harradine has raised is of enormous human importance. Secondly, if one were to rule out of order the substance of Senator Harradine's intended notice of motion, it would be virtually impossible for this Senate to bring forward a notice of motion should a vice-regal personage, or person of such status, say something that is controversial or of a critical nature.

The fact of the matter is-I mean no disrespect at all to any vice-regal person when I say this-that what has been reported as being a statement by the Governor of Victoria is highly controversial and it touches upon a series of matters on which the Victorian Parliament has already legislated, including legislation establishing the Waller Committee to consider the Social, Ethical and Legal Issues arising from In Vitro Fertilisation. It touches upon a report of a select committee of the Senate which is now before the Government for legislative action and, as I understand it, it suggests that all these matters should be put aside when making a decision.

It ought to be possible to criticise the substance of what a vice-regal person, a Crown's representative, says. If we could not criticise the substance of it, that would be a very serious situation. One might be the strongest monarchist on earth and yet surely one could criticise in the Parliament the substance of what a member of the monarchy said.

Senator Gareth Evans-I am delighted to have you on record about all this. When next Sir John Kerr--


The PRESIDENT —Order!

Senator Sir John Carrick-I am always grateful when Senator Evans adds his piece because on the one hand he is chameleon-like, as Senator Chaney says, in standing up for freedom of speech but on the other hand when it suits him to take a point of order he does so. Mr President, I put to you in deadly seriousness that this is the very heart of the challenge of the freedom of the parliaments. Parliaments have the absolute right to legislate and to make decisions on human embryo experimentation or any matters of genetic engineering and they must have that right. If somebody outside this Parliament, whether it happens to be a governor or anybody else, criticises that right, it must be the right of the Parliament to reply. I put it to you, Mr President, that however difficult that may be, Senator Harradine has not implied any disrespect at all and his notice of motion does not offend the Standing Orders.


Senator Harradine —Mr President, very briefly on the point of order--

Senator Gareth Evans-And just on the point of order.


Senator Harradine —I will speak just on the point of order that the Minister raised which, I understand, was standing order 417. He questioned at least part of the notice of motion; I do not suggest that he questioned the whole notice of motion. Standing order 417 states:

No Senator shall use the name of Her Majesty or of Her representative in this Commonwealth disrespectfully in Debate, nor for the purpose of influencing the Senate in its deliberations.

Without canvassing all of the questions involved if the point of order were upheld, including the question of royal prerogative versus executive government and the rights of Parliament, I simply point out that I gave mature consideration to raising this question in the first place and careful consideration to the framing of the motion which accurately expresses what the Governor said. I also point out that standing order 417 states that no senator shall use the name of Her Majesty or Her representative in this Commonwealth disrespectfully in debate. I do not want to canvass this matter as it has been adequately dealt with by both Senator Chaney and Senator Sir John Carrick. However, I raise the question as to whether Standing Orders refer to the governor of a State. The standing order is worded in the singular and I assume that it refers to the Governor-General of the Commonwealth. Insofar as the Governor-General of the Commonwealth is concerned, I am advised that a notice of this nature should be put in the form of an address. Is the Minister following this?

Senator Gareth Evans-Yes.


Senator Harradine —It should be put in the form of an address if it is directed to the Governor-General of Australia rather than in the form of a notice of motion. But I am also informed that there is no way that the Senate can have before it an address to a Governor of a State. Therefore, the only proper recourse for any senator, or indeed the Senate, is by way of the notice of motion which I have given. I must emphasise that I have done so because the Governor himself has really questioned the role of the Senate, in so many words. It was he who raised the question about whether it would be good democracy to impose a law which was passed by the Senate.

Mr President, I ask you: If you are going to rule this notice of motion out of order on a technicality under the Standing Orders, how else can this Senate maintain its integrity against a privileged attack by a Governor of a State of Australia? That is the question that we as a Senate must consider if this notice of motion is ruled out of order. Again, I say finally that Senator Gareth Evans had best be careful about this. If he is suggesting that this notice of motion is out of order, then all sorts of other things can be said with impunity, by Governors of various States, reflecting not only upon the Parliament of Australia but upon the executive government.


The PRESIDENT —I will not uphold the point of order, and I will seek advice before I put Senator Harradine's notice of motion on the Notice Paper. It was not the subject matter that concerned me and it probably was not the subject matter that concerned Senator Gareth Evans. But the use of words and language such as `brings discredit on the office of Governor' certainly has me in some doubt. As I said, I will seek advice to make sure that the notice of motion is in order; and when I see the full text, which I have not seen because it is an extremely long statement, I will advise Senator Harradine and the Senate accordingly as to whether it will go on to the Notice Paper.